Vexatious Litigation Smacks of Grievously Unethical Conduct

By Robyn Hagan Cain on December 9, 2011 3:09 PM

We usually write our own headlines. Some are straightforward. Some are funny. (At least we hope they’re funny). Every once in a while, however, a court will hand us such a gem that we decide to use a direct quote in a headline.

That’s what happened today. (Thanks, Second Appellate District!)

So how far must an attorney go to be deemed a “vexatious litigant” engaged in “grievously unethical conduct?” We’ll give you a hint: The answer involves puppet counsel.

Charles G. Kinney, a lawyer that the court described as a "relentless bully," was declared a vexatious litigant in 2008. Despite this status, Kinney continued to pursue "a persistent and obsessive campaign of litigation terror against his neighbors and the City of Los Angeles."

Though Kinney is barred from representing himself without prior court approval, he managed to evade the court's prefiling order by enlisting a colleague, Kimberly Jean Kempton, to fill his shoes as plaintiff and appellant. With this newly-formed union -- the court nicknamed the pair "the K's" -- Kempton has pursued six lawsuits in Los Angeles Superior Court over the last five years. Since 2007, the K's have lost 13 appeals, had two appeals involuntarily dismissed and had a writ petition summarily denied.

This week, the Second Appellate District ruled that Kinney is using Kempton as his "proxy or puppet" to continue in his vexatious ways, and attempted to rein in the pair.

There are four types of vexatious litigants:

Someone who "has commenced, prosecuted, or maintained in propria persona at least five litigations" that were adversely determined to him or her in the last seven years.

Someone who "repeatedly relitigates or attempts to relitigate, in propria persona" matters that have been finally determined against him or her.

Someone who "while acting in propria persona, repeatedly files unmeritorious motions, pleadings, or other papers ... or engages in other tactics that are frivolous or solely intended to cause unnecessary delay."

Someone who has previously been declared a vexatious litigant in any state or federal court, based on the same or similar facts.

Here, the K's admitted to the court that Kempton was merely a strawman plaintiff filing on Kinney's behalf because it would take too long for Kinney to get court approval to file his own claims. The court, noting that Kinney's unethical conduct "must be stopped immediately," extended its previous order to prevent Kinney from filing any new litigation -- either in his own name or in Kempton's name -- without first obtaining leave of the presiding judge

Do you think this order, which threatens contempt charges, will stop Kinney from pursuing vexatious litigation, or will he simply find another K-initialed attorney to add to his merry band of vexatious litigants?

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